2023 (12) TMI 1057

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....and Vanadium Sludge falling under chapter subheading 2818 20, 2818 30 & 2620 99 respectively of the 1st schedule to the Central Excise Tariff Act, 1985. The Respondent clears Calcined Alumina in powder form and packed in HDPE bags to independent buyers as well as to their own unit at Hirakud, Odisha using railway wagons. During 2006 for the purpose of transportation of Calcined Alumina, the Respondent had temporarily arranged railway siding at a place in Muri Railway Station, where the Respondent used to move Calcined Alumina in packed condition by truck. At that time, the central excise invoice was generated on the basis of weighment scale shown in Respondent's own static road weigh bridge. The packed Calcined Alumina was loaded into rail ....

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....the Respondent demanding Central Excise duty totally amounting to Rs. 9,16,94,272/- being the difference between the quantity recorded in railways receipts and central excise invoices and alleged that the shortage has been clandestine removed. On adjudication, the Ld. Commissioner vide the O-I-O dated 28.03.2013, dropped the demand proposed in the SCN. Aggrieved against the dropping of the demand, the department has filed this appeal. 3. In their grounds of appeal, the Appellant department made the following submissions: (i) The Assessee has accepted the weighment recorded by railways for the purpose of payment of freight, but paid central excise duty on the basis of weighment recorded in their own static weigh bridge. They could not exp....

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....pts involuntarily and under duress. The transportation of Calcined Alumina cannot be delayed at any cost and hence, the Respondent has been paying excess freight under undue influence. The excess payment of freight to Railways cannot be a ground to conclude clandestine clearance of the said differential quantity without any evidence of clearance without payment of duty. (iii) They maintain properly calibrated and certified stationary/static weighbridge which strictly confirms to the statutory requirement of the Department of Legal Metrology. This weighbridge is periodically certified by the competent authority i.e., the Department of Legal Metrology. (iv) Merely on the basis of quantity mentioned on the railway receipts, the department ....

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....STL 41 (Raj), Jai Balaji Industries Ltd vs. Commr. of Cus., C. Ex. & S.T., Durgapur, 2021 5. Heard both sides and perused the appeal documents. 6. We observe that the demand of excise duty has been made in the Notice on the allegation that there is a difference in the quantity mentioned on the railway receipts and central excise invoices prepared by the Respondent. In the Notice, the department alleged that the Respondent has removed excess quantity clandestinely, without the cover of invoices and accordingly, the differential duty has been demanded. We observe that there is no evidence brought on record by the department to allege that there has been excess production. There is no evidence available on record regarding excess receipt....